Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Criminal Street Gangs CALCRIM No. 1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))

CALCRIM No. 1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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1400.Active Participation in Criminal Street Gang (Pen. Code,

§ 186.22(a))

The defendant is charged [in Count ] with participating in a

criminal street gang [in violation of Penal Code section 186.22(a)].

To prove that the defendant is guilty of this crime, the People must

prove that:

1. The defendant actively participated in a criminal street gang;

2. When the defendant participated in the gang, (he/she) knew that

members of the gang engage in or have engaged in a pattern of

criminal gang activity;

AND

3. The defendant willfully assisted, furthered, or promoted felonious

criminal conduct by members of the gang either by:

a. directly and actively committing a felony offense;

b. aiding and abetting a felony offense.

At least two members of that same gang must have participated in

committing the felony offense. The defendant may count as one of those

members if you find that the defendant was a member of the gang.

Active participation means involvement with a criminal street gang in a

way that is more than passive or in name only.

[The People do not have to prove that the defendant devoted all or a

substantial part of (his/her) time or efforts to the gang, or that (he/she)

was an actual member of the gang.]

[A criminal street gang is defined in another instruction to which you

should refer.]

[A criminal street gang is an ongoing organized association or group of

three or more persons, whether formal or informal:

1. That has a common name or common identifying sign or symbol;

2. That has, as one or more of its primary activities, the commission

of <insert one or more crimes listed in Pen. Code,

§ 186.22(e)(1)>;

AND

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3. Whose members collectively engage in or have engaged in a

pattern of criminal gang activity.

In order to qualify as a primary activity, the crime must be one of the

group’s chief or principal activities rather than an occasional act

committed by one or more persons who happen to be members of the

group.]

<Give this paragraph only when the conduct that establishes the pattern of

criminal gang activity, i.e., predicate offenses, has not resulted in a

conviction or sustained juvenile petition>

[To decide whether the ongoing organized association or group has, as

one of its primary activities, the commission of <insert

felony or felonies from Pen. Code, § 186.22(e)(1)>, please refer to the

separate instructions that I (will give/have given) you on (that/those)

crime[s].]

Apattern of criminal gang activity, as used here, means:

1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]

conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]

conviction of[,]/ [or] (Having/having) a juvenile petition sustained

for commission of) (any combination of two or more of the

following crimes/[,] [or] two or more occurrences of [one or more

of the following crimes]:) <insert one or more crimes

listed in Pen. Code, § 186.22(e)(1)>;

2. At least one of those crimes was committed after September 26,

1988;

3. The most recent crime occurred within three years of one of the

earlier crimes and within three years of the date of the charged

offense;

4. The crimes were committed on separate occasions or were

personally committed by two or more members;

5. The crimes commonly benefitted a criminal street gang;

AND

6. The common benefit from the crimes was more than reputational.

Examples of a common benefit that are more than reputational may

include, but are not limited to, financial gain or motivation, retaliation,

targeting a perceived or actual gang rival, or intimidation or silencing of

a potential current or previous witness or informant.

<Give this paragraph only when the conduct that establishes the pattern of

criminal gang activity, i.e., predicate offenses, has not resulted in a

conviction or sustained juvenile petition>

[To decide whether a member of the gang [or the defendant] committed

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<insert felony or felonies from Pen. Code, § 186.22(e)(1)>,

please refer to the separate instructions that I (will give/have given) you

on (that/those) crime[s].]

The People need not prove that every perpetrator involved in the pattern

of criminal gang activity, if any, was a member of the alleged criminal

street gang at the time when such activity was taking place.

[If you find the defendant guilty of a crime in this case, you may

consider that crime in deciding whether one of the group’s primary

activities was commission of that crime.]

[You may not consider evidence of the charged offense[s] in deciding

whether a pattern of criminal gang activity has been established.]

[You may not find that there was a pattern of criminal gang activity

unless all of you agree that two or more crimes that satisfy these

requirements were committed, but you do not have to all agree on which

crimes were committed.]

As the term is used here, a willful act is one done willingly or on

purpose.

Felonious criminal conduct means committing or attempting to commit

[any of] the following crime[s]: <insert felony or felonies by

gang members that the defendant is alleged to have furthered, assisted,

promoted or directly committed>.

[To decide whether a member of the gang [or the defendant] committed

<insert felony or felonies listed immediately above>, please

refer to the separate instructions that I (will give/have given) you on

(that/those) crime[s].]

To prove that the defendant aided and abetted felonious criminal

conduct by a member of the gang, the People must prove that:

1. A member of the gang committed the crime;

2. The defendant knew that the gang member intended to commit

the crime;

3. Before or during the commission of the crime, the defendant

intended to aid and abet the gang member in committing the

crime;

AND

4. The defendant’s words or conduct did in fact aid and abet the

commission of the crime.

Someone aids and abets a crime if he or she knows of the perpetrator’s

unlawful purpose and he or she specifically intends to, and does in fact,

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aid, facilitate, promote, encourage, or instigate the perpetrator’s

commission of that crime.

[If all of these requirements are proved, the defendant does not need to

actually have been present when the crime was committed to be guilty as

an aider and abettor.]

[If you conclude that defendant was present at the scene of the crime or

failed to prevent the crime, you may consider that fact in determining

whether the defendant was an aider and abettor. However, the fact that a

person is present at the scene of a crime or fails to prevent the crime

does not, by itself, make him or her an aider and abettor.]

[A person who aids and abets a crime is not guilty of that crime if he or

she withdraws before the crime is committed. To withdraw, a person

must do two things:

1. He or she must notify everyone else he or she knows is involved

in the commission of the crime that he or she is no longer

participating. The notification must be made early enough to

prevent the commission of the crime;

AND

2. He or she must do everything reasonably within his or her power

to prevent the crime from being committed. He or she does not

have to actually prevent the crime.

The People have the burden of proving beyond a reasonable doubt that

the defendant did not withdraw. If the People have not met this burden,

you may not find the defendant guilty under an aiding and abetting

theory.]

New January 2006; Revised August 2006, June 2007, December 2008, August 2012,

February 2013, August 2013, February 2014, August 2014, February 2016, March

2022, March 2023

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the

crime.

In the definition of “felonious criminal conduct,” insert the felony or felonies the

defendant allegedly aided and abetted. (See People v. Green (1991) 227 Cal.App.3d

692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v. Castenada

(2000) 23 Cal.4th 743, 747-748 [97 Cal.Rptr.2d 906, 3 P.3d 278].) Note that a

defendant’s misdemeanor conduct in the charged case, which is elevated to a felony

by operation of Penal Code section 186.22(a), is not sufficient to satisfy the

felonious criminal conduct requirement of an active gang participation offense

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charged under subdivision (a) of section 186.22 or of active gang participation

charged as an element of felony firearm charges under section 12025(b)(3) or

12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179,

169 P.3d 102].

The court should also give the appropriate instructions defining the elements of

crimes inserted in the list of alleged “primary activities” or inserted in the definition

of “pattern of criminal gang activity” that have not been established by prior

convictions or sustained juvenile petitions. The court should also give the

appropriate instructions defining the elements of all crimes inserted in the definition

of “felonious criminal conduct.”

There is a split in authority over the meaning of “collectively.” (Compare People v.

Delgado (2022) 74 Cal.App.5th 1067 [290 Cal.Rptr.3d 189] [two or more gang

members must have committed each predicate offense]; People v. Clark (2022) 81

Cal.App.5th 133 [296 Cal.Rptr.3d 153] [pattern of criminal gang activity may be

established either by (1) two gang members who separately committed crimes on

different occasions, or (2) two gang members who committed a crime together on a

single occasion], review granted October 19, 2022, S275746.)

On request, give the bracketed paragraph that begins with “The People do not need

to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.

Code, § 186.22(j).)

On request, give the bracketed paragraph that begins with “If you find the defendant

guilty of a crime in this case.” (People v. Sengpadychith (2001) 26 Cal.4th 316,

322-323 [109 Cal.Rptr.2d 851, 27 P.3d 739]; People v. Duran (2002) 97

Cal.App.4th 1448, 1464-1465 [119 Cal.Rptr.2d 272].)

On request, give the bracketed paragraph that begins with “You may not find that

there was a pattern of criminal gang activity.” (People v. Funes (1994) 23

Cal.App.4th 1506, 1527-1528 [28 Cal.Rptr.2d 758]; see also Related Issues section

below on Unanimity.)

On request, the court must give a limiting instruction on the gang evidence. (People

v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d

1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of

Gang Activity.

If the defendant is charged with other counts that do not require gang evidence as

an element, the court must try the Penal Code section 186.22(a) count separately.

(Pen. Code, § 1109(b).)

Defenses - Instructional Duty

If there is evidence that the defendant was merely present at the scene or only had

knowledge that a crime was being committed, the court has a sua sponte duty to

give the bracketed paragraph that begins with “If you conclude that defendant was

present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn. 14 [271 Cal.Rptr.

738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)

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If there is sufficient evidence that the defendant withdrew, the court has a sua

sponte duty to give the final bracketed section on the defense of withdrawal.

Related Instructions

This instruction should be used when a defendant is charged with a violation of

Penal Code section 186.22(a) as a substantive offense. If the defendant is charged

with an enhancement under 186.22(b), use CALCRIM No. 1401, Felony or

Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,

§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor)).

For additional instructions relating to liability as an aider and abettor, see the Aiding

and Abetting series (CALCRIM No. 400 et seq.).

AUTHORITY

• Elements. Pen. Code, § 186.22(a).

• “Active Participation” Defined. People v. Castenada, supra, 23 Cal.4th at p. 747.

• “Criminal Street Gang” Defined. Pen. Code, § 186.22(f).

• “Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g).

• Examples of Common Benefit. Pen. Code, § 186.22(g).

• “Willful” Defined. Pen. Code, § 7(1).

• Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88

Cal.App.4th 432, 436 [105 Cal.Rptr.2d 837]; People v. Castenada, supra, 23

Cal.4th at pp. 749-750.

• “Felonious Criminal Conduct” Defined. People v. Albillar (2010) 51 Cal.4th 47,

54-59 [119 Cal.Rptr.3d 415, 244 P.3d 1062]; People v. Green, supra, 227

Cal.App.3d at p. 704.

• Separate Intent From Underlying Felony. People v. Herrera (1999) 70

Cal.App.4th 1456, 1467-1468 [83 Cal.Rptr.2d 307].

• Willfully Assisted, Furthered, or Promoted Felonious Criminal Conduct. People

v. Rodriguez (2012) 55 Cal.4th 1125, 1132-1138 [150 Cal.Rptr.3d 533, 290 P.3d

1143].

• Temporal Connection Between Active Participation and Felonious Criminal

Conduct. People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 [64 Cal.Rptr.3d

104].

• Crimes Committed After Charged Offense Not Predicates. People v. Duran,

supra, 97 Cal.App.4th at p. 1458.

• Conspiracy to Commit This Crime. People v. Johnson (2013) 57 Cal.4th 250,

255, 266-267 [159 Cal.Rptr.3d 70, 303 P.3d 379].

• Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang

Required. People v. Prunty (2015) 62 Cal. 4th 59, 81-85 [192 Cal.Rptr.3d 309,

355 P.3d 480].

COMMENTARY

The jury may not consider the circumstances of the charged crime to establish a

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pattern of criminal activity. (Pen. Code, § 186.22(e)(2).) A “pattern of criminal gang

activity” requires two or more “predicate offenses” during a statutory time period.

Another offense committed on the same occasion by a fellow gang member may

serve as a predicate offense. (People v. Loeun (1997) 17 Cal.4th 1, 9-10 [69

Cal.Rptr.2d 776, 947 P.2d 1313]; see also In re Nathaniel C. (1991) 228 Cal.App.3d

990, 1002-1003 [279 Cal.Rptr. 236] [two incidents each with single perpetrator, or

single incident with multiple participants committing one or more specified offenses,

are sufficient]; People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [67 Cal.Rptr.2d

126].) However, convictions of a perpetrator and an aider and abettor for a single

crime establish only one predicate offense (People v. Zermeno (1999) 21 Cal.4th

927, 931-932 [89 Cal.Rptr.2d 863, 986 P.2d 196]), and “[c]rimes occurring after the

charged offense cannot serve as predicate offenses to prove a pattern of criminal

gang activity.” (People v. Duran, supra, 97 Cal.App.4th at p. 1458 [original italics].)

The “felonious criminal conduct” need not be gang-related. (People v. Albillar,

supra, 51 Cal.4th at pp. 54-59.)

LESSER INCLUDED OFFENSES

Predicate Offenses Not Lesser Included Offenses

The predicate offenses that establish a pattern of criminal gang activity are not

lesser included offenses of active participation in a criminal street gang. (People v.

Burnell (2005) 132 Cal.App.4th 938, 944-945 [34 Cal.Rptr.3d 40].)

RELATED ISSUES

Conspiracy

Anyone who actively participates in a criminal street gang with knowledge that its

members engage in or have engaged in a pattern of criminal gang activity, and who

willfully promotes, furthers, assists, or benefits from any felonious criminal conduct

by the members, is guilty of conspiracy to commit that felony. (Pen. Code, § 182.5;

see Pen. Code, § 182; CALCRIM No. 415, Conspiracy.)

Labor Organizations or Mutual Aid Activities

The California Street Terrorism Enforcement and Prevention Act does not apply to

labor organization activities or to employees engaged in activities for their mutual

aid and protection. (Pen. Code, § 186.23.)

Related Gang Crimes

Soliciting or recruiting others to participate in a criminal street gang, or threatening

someone to coerce them to join or prevent them from leaving a gang, are separate

crimes. (Pen. Code, § 186.26.) It is also a crime to supply a firearm to someone who

commits a specified felony while participating in a criminal street gang. (Pen. Code,

§ 186.28.)

Unanimity

The “continuous-course-of-conduct exception” applies to the “pattern of criminal

gang activity” element of Penal Code section 186.22(a). Thus the jury is not

required to unanimously agree on which two or more crimes constitute a pattern of

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criminal activity. (People v. Funes,supra, 23 Cal.App.4th at pp. 1527-1528.)

SECONDARY SOURCES

2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace

and Welfare, §§ 31-46.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes

Against Order, § 144.03 (Matthew Bender).

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Page last reviewed May 2024